Sansad TV: The Defenders- AFSPA & Dilution of the Act | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

AFSPA

• The Armed Forces (Special Powers) Act (AFSPA) grants the armed forces the authority to maintain public order in designated "disturbed areas". Within these areas, they possess the power to prohibit gatherings of five or more people, employ force, including the use of firearms after issuing a warning, when they perceive a violation of the law. If there is reasonable suspicion, the army is also empowered to make arrests without a warrant, conduct searches of premises without a warrant, and impose restrictions on firearm possession.
• In the event of an arrest or detention, the individual may be handed over to the officer in charge of the nearest police station, accompanied by a report detailing the circumstances leading to the arrest.

Disturbed Area

• A disturbed area is defined through a notification under Section 3 of the AFSPA. This designation can arise from conflicts or disputes involving different religious, racial, linguistic, regional, caste, or communal groups.

Authority to Declare

• The authority to declare a whole or part of a state or union territory as a disturbed area lies with the Central Government, the Governor of the State, or the administrator of the Union Territory.
• The declaration must be officially published in the Official Gazette. As stated in Section 3, this measure can be invoked in areas where "the use of armed forces in aid of the civil power is necessary."

Origin of AFSPA

The enactment of the Armed Forces (Special Powers) Act (AFSPA) was prompted by the escalating violence in the Northeastern States many decades ago, which posed significant challenges for the State governments to manage. The Armed Forces (Special Powers) Bill was passed by both houses of Parliament and received presidential approval on September 11, 1958, becoming known as the Armed Forces Special Powers Act, 1958.

Special powers granted to army officials

• According to Section 4 of the AFSPA, an authorized officer in a disturbed area is vested with certain powers. This authorized officer possesses the authority to use firearms, even resulting in fatal consequences, against any individual who violates laws prohibiting (a) gatherings of five or more persons, or (b) the carrying of weapons. However, the officer is required to issue a warning prior to resorting to the use of firearms.
• Furthermore, the authorized officer is empowered to (a) make arrests without a warrant, and (b) conduct searches and seizures without a warrant on premises for the purpose of making arrests or recovering hostages, arms, and ammunition.
• Individuals taken into custody must be promptly handed over to the nearest police station.
• The prosecution of an authorized officer necessitates prior permission from the Central government.

Role of the judiciary

• Concerns were raised regarding the constitutionality of AFSPA, considering that the maintenance of law and order is typically a state subject. In a 1998 judgment (Naga People's Movement of Human Rights v. Union of India), the Supreme Court upheld the constitutionality of AFSPA.
• In this judgment, the Supreme Court made several determinations: (a) the Central government can make a suo-motto declaration, but it is preferable for the state government to be consulted beforehand; (b) AFSPA does not grant arbitrary powers to designate an area as a "disturbed area"; (c) the declaration should be time-limited, and there should be periodic reviews after six months; (d) authorized officers must exercise minimal force necessary for effective action while adhering to the "Dos and Don'ts" issued by the army.

Draconian Act, Why?

• AFSPA has been criticized as a "license to kill." The primary objection to the Act focuses on Section 4, which grants the armed forces the power to open fire, including causing death, when prohibitory orders are violated. Human rights activists argue that these provisions give the security forces unrestricted authority to arrest, search, seize, and even resort to lethal force.
• Activists accuse the security forces of destroying homes and entire villages based solely on suspicions of insurgents' presence. They highlight that Section 4 enables the armed forces to arrest individuals without a warrant and detain them for extended periods.
• Critics also raise concerns about Section 6, which shields security forces personnel from prosecution except with prior sanction from the central government. This provision has, according to critics, allowed non-commissioned officers to openly fire on crowds without being held accountable.
• Critics argue that the act has failed to curb terrorism and restore normalcy in the affected areas, as the number of armed groups has increased since its establishment. Some even attribute the escalating violence in these regions to the presence of AFSPA.
• Notably, the government's decision to declare an area as "disturbed" cannot be legally challenged, which often leads to unnoticed cases of human rights violations.

Recommendations made by experts

Jeevan Reddy Committee: In 2004, a committee led by Justice Jeevan Reddy was appointed to review AFSPA. Although the committee acknowledged that the powers granted by the Act are not absolute, it ultimately recommended the repeal of the Act. However, it proposed that essential provisions of the Act should be included in the Unlawful Activities (Prevention) Act of 1967.

The key recommendations of the Reddy Committee were as follows:

• In certain situations, the state government may request the Union government to deploy the army for a maximum period of six months.
• The Union government may also deploy the armed forces without a request from the state, but a review of the situation should be conducted after six months, and approval from Parliament should be sought for an extension of the deployment.
• Non-commissioned officers should retain the power to use firearms.
• The Union government should establish an independent grievances cell in each district where the Act is in effect.

The Justice Verma report addressed the Act within a section on offenses against women in conflict areas. The report emphasized the need to bring sexual violence against women by armed forces or uniformed personnel under ordinary criminal law. It further stated that the continuance of AFSPA and similar legal protocols in internal conflict areas should be reviewed promptly. This aligns with the Supreme Court's ruling in July, which emphasized that the Army and police are not immune to using excessive force even under AFSPA. However, none of these recommendations have significantly impacted the status of AFSPA.

The Second Administrative Reforms Commission, led by former Union law minister M. Veerappa Moily, also recommended the repeal of AFSPA and the inclusion of its essential provisions in the UAPA. However, adopting this course of action would be a regressive step that could significantly undermine the national cause.

Reasons for the existence of AFSPA

• The Army perceives AFSPA as a crucial enabling act that grants it the necessary powers to effectively carry out counter-insurgency operations. According to the army leadership, the repeal or dilution of AFSPA would have a detrimental impact on the performance of battalions in such operations, potentially allowing terrorists or insurgents to gain the upper hand. Critics argue that removing the act would demoralize the armed forces and encourage militants to file lawsuits against the army.
• Furthermore, the armed forces understand that they cannot afford to fail when called upon to protect the country's integrity. Therefore, they require a minimal legislative framework that ensures the efficient utilization of their combat capabilities. This includes safeguards against legal harassment and the empowerment of officers to make decisions regarding the use of necessary force. Without such legal provisions, organizational flexibility and the utilization of the state's security capacity would be compromised, rendering the security forces incapable of fulfilling their assigned role.
• AFSPA is considered necessary to maintain law and order in disturbed areas and to discourage the advancement of terrorist activities in these regions. Extraordinary situations require special handling, and since the army lacks police powers under the Constitution, granting it special powers for operational purposes in disturbed areas is deemed to be in the national interest.
• Protective measures are already provided within the Act. Section 5 mandates that arrested civilians must be promptly handed over to the nearest police station, along with a report detailing the circumstances of the arrest. Army headquarters has also instructed that all suspects who are arrested should be transferred to civilian authorities within 24 hours. Regarding the use of force on civilians, the army's instructions state that firing may only occur in self-defense in towns and villages, and only when the source of terrorist or militant fire is clearly identified.

Conclusion

The challenges related to transparency in counter-insurgency operations need to be addressed through innovative measures. The army must demonstrate complete transparency in investigating allegations of human rights violations and ensure swift justice for the perpetrators. Exemplary punishment should be administered when charges are proven.